Capstone Green Energy (CGRNQ) 8-KIn the United States Bankruptcy Court for the District of Delaware

EXHIBIT 99.1

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

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Notice of FILING OF ADDITIONAL EXHIBITS TO PLAN SUPPLEMENT

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PLEASE TAKE NOTICE that, on September 28, 2023, the above-captioned debtors and debtors in possession (collectively, the “Debtors”) filed the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 17, revised at Docket No. 70] (as may be amended, supplemented, or modified from time to time, the “Plan”) and the related Disclosure Statement for the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates (as may be amended, supplemented, or modified from time to time, the “Disclosure Statement”) [Docket No. 18].

PLEASE TAKE FURTHER NOTICE that, on October 24, 2023, the Debtors filed the Notice of Filing of Plan Supplement to Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 71] (the “Plan Supplement Notice”).  

PLEASE TAKE FURTHER NOTICE that, as indicated in the Plan Supplement Notice, the Debtors reserved their rights to amend, revise, or supplement the Plan Supplement and any of the documents and designations contained therein.  Also as indicated in the Plan Supplement Notice, certain materials were omitted therefrom and were to be filed as soon as practicable prior to the Confirmation Hearing.  Accordingly, the Debtors hereby file the following exhibits, (collectively, the “Additional Exhibits”), which, along with the exhibits attached to the original Plan Supplement Notice, comprise the Plan Supplement:

PLEASE TAKE FURTHER NOTICE that the Plan Supplement, the Plan, the Disclosure Statement, and related materials can be obtained free of charge at the Debtors’ public restructuring website maintained by Kroll Restructuring Administration LLC (the “Claims and Noticing Agent”) at https://cases.ra.kroll.com/capstone or by contacting the Claims and Noticing Agent at (844) 642-1256 (Toll-free from US / Canada) or +1 (646) 651-1164 (International).  In addition, such documents are available for inspection for a fee on the Court’s website at www.deb.uscourts.gov and are on file with the Clerk of the Court, 824 North Market Street, 3rd Floor, Wilmington, Delaware 19801, where they are available for review between the hours of 8:00 a.m. to 4:00 p.m., prevailing Eastern Time.

PLEASE TAKE FURTHER NOTICE that, subject to the terms and conditions of the Plan, the Debtors reserve all rights to amend, supplement or modify the Plan Supplement and any of the documents and designations contained therein, including the Additional Exhibits, none of which shall be deemed final or binding on the Debtors prior to the Effective Date of the Plan.

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Exhibit E

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Description of Retained Assets and List of Retained Contracts

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“Retained Assets” means (i) all of Capstone’s right, title, and interest in and to the Capstone Trademarks (including those that are assigned to Capstone pursuant to the IP Assignment Agreement); and (ii) all assets, including cash, accounts receivable, tangible assets and intangible assets, owned by Capstone as of the Petition Date, that relate solely to Distributor Support Services, which include certain computer equipment, software, trade show displays and contracts for the provision of Distributor Support Services to be entered into with certain distributors on or following the Effective Date; provided, however, that notwithstanding the foregoing, no Executory Contracts or Unexpired Leases existing prior to the Effective Date, other than Retained Contracts, shall be Retained Assets.

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List of Retained Contracts:  None.

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Exhibit F

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Directors and Officers of the Reorganized Debtors (Amended)

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As of the Effective Date, the Reorganized PublicCo Board shall be appointed in accordance with the organizational documents of Reorganized PublicCo, the other constituent documents of the Reorganized Debtors, and the Plan.  On the Effective Date, the Reorganized PublicCo Board shall consist of the following five members, all of whom served on the board of directors of Capstone Green Energy Corporation as of the Petition Date:

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Further, as of the Effective Date, the officers of the Reorganized Debtors shall be appointed in accordance with the organizational documents of the Reorganized Debtors and the Plan.  On the Effective Date, the officers of both Reorganized PublicCo and New Subsidiary shall be as follows:

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Finally, on the Effective Date, the directors and officers of Reorganized PrivateCo shall be as follows:

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Exhibit G

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Organizational Documents of the Reorganized Debtors

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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

among

CAPSTONE GREEN ENERGY LLC

and

THE MEMBERS NAMED HEREIN

dated as of

[●], 2023

TABLE OF CONTENTS

ARTICLE I DEFINITIONS6

Section 1.01 Definitions.6

Section 1.02 Interpretation.21

ARTICLE II ORGANIZATION21

Section 2.01 Formation.21

Section 2.02 Name.22

Section 2.03 Principal Office.22

Section 2.04 Registered Office; Registered Agent.22

Section 2.05 Purpose; Powers.22

Section 2.06 Term.22

Section 2.07 No State-Law Partnership.22

ARTICLE III UNITS23

Section 3.01 Units Generally.23

Section 3.02 Authorization and Issuance of Preferred Units.23

Section 3.03 Authorization and Issuance of Common Units.23

Section 3.04 Other Issuances.23

Section 3.05 No Unit Certificates.24

Section 3.06 Conversion of Preferred Units.24

Section 3.07 Redemption of Preferred Units.25

Section 3.08 Breaches; Failure to Effect Redemption.26

ARTICLE IV MEMBERS27

Section 4.01 Admission of New Members.27

Section 4.02 Representations and Warranties of Members.27

Section 4.03 No Personal Liability.29

Section 4.04 No Withdrawal.29

Section 4.05 Voting.29

Section 4.06 Matters Requiring Approval of Preferred Requisite Members.29

Section 4.07 Meetings of Members.32

Section 4.08 Quorum; Required Vote.33

Section 4.09 Action Without Meeting.33

Section 4.10 Power of Members.33

Section 4.11 Other Activities of Members; Business Opportunities.34

Section 4.12 No Interest in Company Property.34

ARTICLE V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS34

Section 5.01 Initial Capital Contributions.34

Section 5.02 Additional Capital Contributions.34

Section 5.03 Maintenance of Capital Accounts.34

Section 5.04 Succession Upon Transfer.35

Section 5.05 Negative Capital Accounts.35

Section 5.06 No Withdrawal.35

Section 5.07 Treatment of Loans from Members.35

Section 5.08 Modifications.36

ARTICLE VI ALLOCATIONS36

Section 6.01 Allocation of Net Income and Net Loss.36

Section 6.02 Regulatory and Special Allocations.36

Section 6.03 Tax Allocations.37

Section 6.04 Allocations in Respect of Transferred Units.38

Section 6.05 Curative Allocations.38

ARTICLE VII DISTRIBUTIONS39

Section 7.01 General.39

Section 7.02 Distributions.39

Section 7.03 Tax Advances.39

Section 7.04 Distributions in Kind.40

ARTICLE VIII MANAGEMENT40

Section 8.01 Establishment and Authority of the Board.40

Section 8.02 Board Composition.41

Section 8.03 Board Observer Right.41

Section 8.04 Removal; Resignation.41

Section 8.05 Meetings of the Board.42

Section 8.06 Quorum; Manner of Acting.42

Section 8.07 Action By Written Consent.43

Section 8.08 Officers.43

Section 8.09 Compensation and Reimbursement of Managers; No Employment.43

Section 8.10 Other Activities of Managers; Business Opportunities.44

Section 8.11 No Personal Liability.44

ARTICLE IX PREEMPTIVE RIGHTS44

Section 9.01 Preemptive Right.44

ARTICLE X TRANSFER47

Section 10.01 General Restrictions on Transfer.47

Section 10.02 Permitted Transfers.49

Section 10.03 Right of First Refusal.49

Section 10.04 Change of Control Repurchase Right.51

Section 10.05 Tag-Along Rights.51

Section 10.06 Right of First Offer.54

ARTICLE XI ACCOUNTING; REPORTING; TAX MATTERS54

Section 11.01 Financial Statements.54

Section 11.02 Inspection Rights.55

Section 11.03 Budget.55

Section 11.04 Partnership Representative.55

Section 11.05 Tax Returns.57

Section 11.06 Company Funds.57

ARTICLE XII DISSOLUTION AND LIQUIDATION57

Section 12.01 Events of Dissolution.57

Section 12.02 Effectiveness of Dissolution.58

Section 12.03 Liquidation.58

Section 12.04 Liquidation Preference.59

Section 12.05 Cancellation of Certificate.59

Section 12.06 Survival of Rights, Duties, and Obligations.60

Section 12.07 Recourse for Claims.60

ARTICLE XIII EXCULPATION AND INDEMNIFICATION60

Section 13.01 Standard of Care; Duties; Reliance On Information.60

Section 13.02 Indemnification.61

Section 13.03 Survival.64

ARTICLE XIV MISCELLANEOUS64

Section 14.01 Confidentiality.64

Section 14.02 Expenses.65

Section 14.03 Further Assurances.65

Section 14.04 Notices.65

Section 14.05 Headings.66

Section 14.06 Severability.66

Section 14.07 Entire Agreement.66

Section 14.08 Successors and Assigns.66

Section 14.09 No Third-Party Beneficiaries.66

Section 14.10 Amendment.66

Section 14.11 Waiver.67

Section 14.12 Governing Law.67

Section 14.13 Submission to Jurisdiction.67

Section 14.14 Waiver of Jury Trial.67

Section 14.15 Equitable Remedies.68

Section 14.16 No Impairment of Rights.68

Section 14.17 Attorneys’ Fees.68

Section 14.18 Remedies Cumulative.68

Section 14.19 Counterparts.68

Section 14.20 Independent Counsel.68

Section 14.21 Representations and Warranties of the Company.69

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

This Amended and Restated Limited Liability Company Agreement of Capstone Green Energy LLC, a Delaware limited liability company (the “Company”), is entered into as of [●], 2023, by and among the Company, the Members executing this Agreement as of the date hereof (collectively, the “Initial Members”), and each other Person who after the date hereof becomes a Member of the Company and becomes a party to this Agreement by executing a Joinder Agreement.

RECITALS

WHEREAS, the Company was formed under the laws of the State of Delaware by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware (the “Secretary of State”) on October 16, 2023 (the “Certificate of Formation”);

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WHEREAS, Capstone Green Energy Corporation (“Capstone”) entered into a Limited Liability Company Agreement of the Company on October 16, 2023 (the “Original Agreement”);

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WHEREAS, Capstone desires to amend and restate the Original Agreement in its entirety as set forth herein for the purposes of, and on the terms and conditions set forth in, this Agreement;

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WHEREAS, pursuant to the steps described in the Plan (as defined below), (i) all liabilities and assets of Capstone (other than (x) the stock of Capstone Turbine International, Inc., (y) those liabilities and assets directly related to the Retained Assets (as defined in the Plan) and described in the Plan and (z) obligations under the DIP Financing Agreement (as defined below) and Pre-Petition Secured Debt (as defined in the Plan)) were transferred to the Company, and (ii) the Common Units (defined below) and Preferred Units (as defined below) were issued to Capstone.

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WHEREAS, pursuant to the steps described in the Plan, Capstone contributed 100% of the Common Units to Capstone Turbine International, Inc., which was re-named Capstone Green Energy Holdings, Inc., and Capstone retained 100% of the Preferred Units.

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WHEREAS, the Members wish to enter into this Agreement setting forth the terms and conditions governing the operation and management of the Company.

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NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

“Acceptance Notice” has the meaning set forth in Section 9.01(c).

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:

“Adjusted Taxable Income” of a Member for a Fiscal Year (or portion thereof) with respect to Units held by such Member means the federal taxable income allocated by the Company to the Member with respect to such Units (as adjusted by any final determination in connection with any tax audit or other proceeding) for such Fiscal Year (or portion thereof); provided, that such taxable income shall be computed (a) minus any excess taxable loss or excess taxable credits of the Company for any prior period allocable to such Member with respect to such Units that were not previously taken into account for purposes of determining such Member’s Adjusted Taxable Income in a prior Fiscal Year to the extent such loss or credit would be available under the Code to offset income of the Member (or, as appropriate, the direct or indirect members of the Member) determined as if the income, loss, and credits from the Company were the only income, loss, and credits of the Member (or, as appropriate, the direct or indirect members of the Member) in such Fiscal Year and all prior Fiscal Years; and (b) taking into account any special basis adjustment with respect to such Member resulting from an election by the Company under Code Section 754.

“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract, or otherwise. Notwithstanding the foregoing, the term “Affiliate,” (a) when used with respect to the Preferred Members and their Affiliates, shall not, for purposes of this Agreement, include the other Members, Reorganized PublicCo and its Subsidiaries, and their respective Affiliates and (b) when used with respect to Reorganized PublicCo and its Affiliates, shall not, for purposes of this Agreement, include the Preferred Members and the Preferred Members’ Subsidiaries and respective Affiliates. Whenever a Subsidiary or controlled Affiliate of a Person agrees to take any action or omit to take any action hereunder, such Person shall cause such Subsidiary or controlled Affiliate to take such action or omit to take such action.

“Aggregate Purchase Price” means $10,449,863.

“Agreement” means this Amended and Restated Limited Liability Company Agreement, as executed and as it may be amended, modified, supplemented, or restated from time to time, as provided herein.

“Anti-Corruption and Anti-Bribery Laws” means any and all applicable requirements of law related to anti-corruption or anti-bribery matters, including the United States Foreign Corrupt Practices Act of 1977.

“AML Laws” means any and all applicable requirements of law related to engaging in, financing, or facilitating terrorism or money laundering, including the PATRIOT Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§5311-5330 and 12 U.S.C. §§1818(s), 1820(b) and 1951-1959), Trading With the Enemy Act (50 U.S.C. §1 et seq.), Executive Order 13224 (effective September 24, 2001) and each of the laws, regulations, and executive orders administered by OFAC (31 C.F.R., Subtitle B, Chapter V).

“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations, or orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority; and (c) any orders, decisions, advisory, or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with, any Governmental Authority.

“Appraiser” means an independent nationally recognized third-party appraisal firm, mutually acceptable and designated by the Board and Preferred Requisite Members promptly following the date on which an appraisal or valuation by an Appraiser is required under this Agreement. The selected firm shall have the authority and responsibility to conduct an independent appraisal or valuation as required under this Agreement.

“Bankruptcy” means, with respect to a Member, the occurrence of any of the following: (a) the filing of an application by such Member for, or a consent to, the appointment of a trustee of such Member’s assets; (b) the filing by such Member of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing such Member’s inability to pay their debts as they come due; (c) the making by such Member of a general assignment for the benefit of such Member’s creditors; (d) the filing by such Member of an answer admitting the material allegations of, or such Member’s consenting to, or defaulting in answering a bankruptcy petition filed against such Member in any bankruptcy proceeding; or (e) upon the entry of an order, judgment, or decree by any court of competent jurisdiction adjudicating such Member a bankrupt or appointing a trustee of such Member’s assets.

“BBA” means the Bipartisan Budget Act of 2015.

“Board” has the meaning set forth in Section 8.01.

“Book Depreciation” means, with respect to any Company asset for each Fiscal Year, the Company’s depreciation, amortization, or other cost recovery deductions determined for federal income tax purposes, except that if the Book Value of an asset differs from its adjusted tax basis at the beginning of such Fiscal Year, Book Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero and the Book Value of the asset is positive, Book Depreciation shall be determined with reference to such beginning Book Value using any permitted method selected by the Board in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3).

“Book Value” means, with respect to any Company asset, the adjusted basis of such asset for federal income tax purposes, except as follows:

provided, that an adjustment pursuant to clauses (i), (ii), (iii), (iv) or (v) above need not be made if the Board reasonably determines that such adjustment is not necessary or appropriate to reflect the relative economic interests of the Members and that the absence of such adjustment does not adversely and disproportionately affect any Member;

“Breach” means a breach of any provision of the Governing Documents or the Registration Rights Agreement, the result of which is that the Preferred Members or the rights and preferences of the Preferred Units are materially and adversely affected.

“Budget” has the meaning set forth in Section 11.03.

“Business” has the meaning set forth in Section 2.05(a).

“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the City of New York are authorized or required to close.

“Business Opportunity” has the meaning set forth in Section 8.10(b).

“Capital Account” has the meaning set forth in Section 5.03.

“Capital Contribution” means, for any Member, the total amount of cash and cash equivalents and the Book Value of any property contributed to the Company by such Member.

“Capstone” has the meaning set forth in the Recitals.

“Certificate of Formation” has the meaning set forth in the Recitals.

“Change of Control” has the meaning set forth in Section 12.04(b).

“Code” means the Internal Revenue Code of 1986.

“Common Member” means a Member that holds Common Units.

“Common Requisite Members” means the holders of a majority of the Common Units held by the Common Members.

“Common Unit Equivalents” means any security or obligation that is by its terms, directly or indirectly, convertible into, exchangeable, or exercisable for Common Units, and any option, warrant, or other right to subscribe for, purchase, or acquire Common Units.

“Common Units” means the Units having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Common Units” in this Agreement.

“Common Units Deemed Outstanding” means at any given time, the sum of (a) the number of Common Units actually outstanding at such time, plus (b) the number of Common Units reserved for issuance at such time under option or other equity or equity-linked incentive plans, regardless of whether the Common Units are actually subject to outstanding options at such time or whether any outstanding options are actually exercisable at such time, plus (c) the number of Common Units issuable upon exercise of any other options (other than options described in clause (b) above) actually outstanding at such time, plus (d) the number of Common Units issuable upon conversion or exchange of convertible securities actually outstanding at such time (treating as actually outstanding any convertible securities issuable upon exercise of options actually outstanding at such time), in each case, regardless of whether the options or convertible securities are actually exercisable, convertible or exchangeable at such time.

“Company” has the meaning set forth in the Preamble.

“Company Minimum Gain” means “partnership minimum gain” as defined in Treasury Regulations Section 1.704-2(b)(2), substituting the term “Company” for the term “partnership” as the context requires.

“Company Subsidiary” means a Subsidiary of the Company.

“Competitor” means any Person engaged, directly or indirectly, in whole or in part (including through any Subsidiary, joint venture or other similar arrangement, or other Person), in any material aspect of the Business; provided, however, that any financial investment firm, fund, or collective investment vehicle that, together with its Affiliates, holds less than 15.0000% of the outstanding equity interests of any Competitor and that does not, nor does any of its Affiliates, designate or have a right to designate, any members of its board of directors, board of managers, or similar governing body shall not constitute a Competitor.

“Confidential Information” has the meaning set forth in Section 14.01.

“Court of Chancery” means the Court of Chancery of the State of Delaware.

“Covered Person” means each (a) Member, (b) officer, director, equity holder, direct and indirect partner (including partners of partners and equity holders and members of partners), member, manager, officer, Affiliate, employee, agent, or representative of a Member, and each of their controlling Affiliates and anyone who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, (c) Manager, Officer, employee, agent, or representative of the Company, (d) Partnership Representative and (e) Designated Individual.

“Delaware Act” means the Delaware Limited Liability Company Act, Title 6, Chapter 18, §§ 18-101, et seq.

“Designated Individual” has the meaning set forth in Section 11.04(a).

“DIP Financing Agreement” means the Super-Priority Senior Secured Debtor-in-Possession Note Purchase Agreement, as in effect on October 2, 2023, by and among Reorganized PublicCo, the other debtor parties thereto, Broad Street Credit Holdings LLC and Goldman Sachs Specialty Lending Group, L.P. (and not including amendments, supplements or modifications from time to time).

“Distribution” means a distribution made by the Company to a Member, whether in cash, property, or securities of the Company and whether by liquidating distribution or otherwise; provided, that none of the following shall be a Distribution: (a) any redemption or repurchase by the Company or any Member of any Units or Unit Equivalents (including pursuant to Section 3.07); (b) any recapitalization or exchange of securities of the Company; or (c) any subdivision (by a split of Units or otherwise) or any combination (by a reverse split of Units or otherwise) of any outstanding Units. “Distribute” when used as a verb shall have a correlative meaning.

“Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved, and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process.

“Estimated Tax Amount” of a Member for a Fiscal Year means the Member’s Tax Amount for such Fiscal Year as estimated in good faith from time to time by the Board. In making such estimate, the Board shall take into account amounts shown on Internal Revenue Service Form 1065 filed by the Company and similar state or local forms filed by the Company for the preceding taxable year and such other adjustments as in the reasonable business judgment of the Board are necessary or appropriate to reflect the estimated operations of the Company for the Fiscal Year.

“Excess Amount” has the meaning set forth in Section 7.03(c).

“Exchange Act” means the Securities Exchange Act of 1934.

“Exercise Period” has the meaning set forth in Section 9.01(c).

“Exercising Member” has the meaning set forth in Section 9.01(d).

“Existing Business” means the Business as modified by the Company’s engagement in any new business opportunities, investments or transactions since the date of this Agreement in accordance with the terms and conditions hereof, including Section 4.06(b).

“Exit Facility” means the New Debt Facility (as such term is defined in the Plan), as it may be amended from time to time, and any refinancings thereof.

“Fair Market Value” of any asset as of any date means the purchase price that a willing buyer having all relevant knowledge would pay a willing seller for such asset in an arm’s-length transaction, as determined in good faith by the Board based on such factors as the Board, in the exercise of its reasonable business judgment, considers relevant; provided, however, with respect to the Preferred Units, “Fair Market Value” means the value on an as-converted to Common Units basis, as agreed upon by the Company and the Preferred Requisite Members, or, if no such agreement is reached, the value established by an Appraiser. If there is a trading market for the equity of Reorganized PublicCo at the time of any Fair Market Value determination of the Preferred Units, such fair market value determination shall be determined by reference to the trading price of such Reorganized PublicCo equity, with appropriate adjustments for customary and appropriate factors.

“Fiscal Year” means each twelve (12) month period ended March 31, which shall also be the Company’s taxable year.

“GAAP” means United States generally accepted accounting principles in effect from time to time.

“Governing Documents” means this Agreement and the Certificate of Formation.

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction.

“Initial Members” has the meaning set forth in the Preamble.

“Interested Transaction” means any transaction, or series of similar transactions, to which the Company or any of its Affiliates is a party, if such transaction would have required disclosure by a reporting company in accordance with the provisions of Item 404 of Regulation S-K promulgated under the Securities Act, and in which the Restricted Entities will have a direct or indirect material interest.

“Insolvent” means (a) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total indebtedness or (b) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become due.

“Investment Company Act” means the Investment Company Act of 1940.

“Issuance Notice” has the meaning set forth in Section 9.01(b).

“Joinder Agreement” means the joinder agreement in form and substance attached hereto as Exhibit A.

“Lien” means any mortgage, pledge, security interest, option, right of first offer, encumbrance, or other restriction or limitation of any nature, in each case except for restrictions under Applicable Law.

“Liquidation Event” has the meaning set forth in Section 12.04(b).

“Liquidation Preference” has the meaning set forth in Section 12.04(a).

“Liquidator” has the meaning set forth in Section 12.03(a).

“Losses” has the meaning set forth in Section 13.02(a).

“Manager” has the meaning set forth in Section 8.01.

“Managers Schedule” has the meaning set forth in Section 8.04(d).

“Material Terms” has the meaning set forth in Section 10.06(b).

“Member” means (a) each Initial Member, and (b) each Person who is hereafter admitted as a Member in accordance with the terms of this Agreement and the Delaware Act, in each case so long as such Person is shown on the Company’s books and records as the owner of one or more Units. The Members shall constitute the “members” (as that term is defined in the Delaware Act) of the Company.

“Member Indemnitors” has the meaning set forth in Section 13.02(f).

“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulations Section 1.704-2(b)(4), substituting the term “Company” for the term “partnership” and the term “Member” for the term “partner” as the context requires.

“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3).

“Member Nonrecourse Deduction” means “partner nonrecourse deduction” as defined in Treasury Regulations Section 1.704-2(i), substituting the term “Member” for the term “partner” as the context requires.

“Members Schedule” has the meaning set forth in Section 3.01.

“Membership Interest” means an interest in the Company owned by a Member, including such Member’s right (based on the type, class, or series of Unit or Units held by such Member), as applicable, to (a) such Member’s distributive share of Net Income, Net Losses, and other items of income, gain, loss, and deduction of the Company, (b) such Member’s distributive share of the assets of the Company, (c) vote on, consent to, or otherwise participate in any decision of the Members as provided in this Agreement and (d) any and all other benefits to which such Member may be entitled as provided in this Agreement or the Delaware Act.

“Misallocated Item” has the meaning set forth in Section 6.05.

“Net Income” and “Net Loss” mean, for each Fiscal Year or other period specified in this Agreement, an amount equal to the Company’s taxable income or taxable loss, or particular items thereof, determined in accordance with Code Section 703(a) (where, for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or taxable loss), but with the following adjustments:

“New Interests” has the meaning set forth in Section 3.04.

“New Securities” has the meaning set forth in Section 9.01(a).

“Non-Exercising Member” has the meaning set forth in Section 9.01(d).

“Nonrecourse Liability” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Offer Notice” has the meaning set forth in Section 10.06(b).

“Offered Units” has the meaning set forth in Section 10.03(a).

“Offering Member” has the meaning set forth in Section 10.03(a).

“Offering Member Notice” has the meaning set forth in Section 10.03(b)(i).

“Officers” has the meaning set forth in Section 8.08.

“Original Agreement” has the meaning set forth in the Recitals.

“Over-Allotment Exercise Period” has the meaning set forth in Section 9.01(d).

“Over-Allotment Notice” has the meaning set forth in Section 9.01(d).

“Participation Units” has the meaning set forth in Section 10.05(c)(i).

“Partnership Representative” has the meaning set forth in ‎Section 11.04(a).

“Percentage Interest” means, for any Member (treating the Preferred Units and Common Units as one class of Units, on an as-converted basis), the number of Common Units Deemed Outstanding held by such Member (treating the Preferred Units as Common Units, on an as-converted basis) divided by the total number of Common Units Deemed Outstanding (treating the Preferred Units as Common Units, on an as-converted basis), expressed as a percentage.

“Permitted Transfer” means a Transfer of Preferred Units or Common Units carried out pursuant to Section 10.02.

“Permitted Transferee” means a recipient of a Permitted Transfer.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity.

“Plan” means the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates (as may be amended, supplemented, or otherwise modified from time to time in

accordance with its terms and the terms of the Transaction Support Agreement, and including all exhibits and supplements thereto).

“Preferred Member” means a Member holding Preferred Units.

“Preferred Requisite Members” means the holders of a majority of the Preferred Units held by the Preferred Members.

“Preferred Units” means the Units having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Preferred Units” in this Agreement.

“Preferred Units Redemption Period” means the six (6) months following the sixth (6^th) anniversary of the effective date of this Agreement.

“Pro Rata Portion” means, with respect to any Member, on any issuance date for New Securities, the number of New Securities equal to the product of (a) the total number of New Securities to be issued by the Company on such date and (b) such Member’s Percentage Interest on such date immediately prior to such issuance.

“Proposed Transferee” has the meaning set forth in Section 10.05(a).

“Prospective Purchaser” has the meaning set forth in Section 9.01(b).

“Public Official” means any person holding an elected or appointed office and any other officer or employee of a government or a department, agency, instrumentality or part thereof (including a state-owned or -controlled enterprise or a joint venture / partnership with a government entity), any officer or employee of a public international organization or a political party, and any candidate for political office; or any person exercising a public function or acting in an official capacity for or on behalf of any of the foregoing.

“Purchasing Member” has the meaning set forth in Section 10.03(c)(i).

“Qualified Public Offering” means the Company’s (or its successor’s) first underwritten offering to the public pursuant to an effective registration statement under the Securities Act; provided that (a) such registration statement covers the offer and sale of Common Units the aggregate gross proceeds of which attributable to sales for the account of the Company (after payment of underwriters’ discounts and commissions) exceed $100,000,000.00, and (b) the Common Units are listed for trading on the New York Stock Exchange or the Nasdaq Stock Market (or, in each case, any successor market thereto).

“Quarterly Estimated Tax Amount” of a Member for any calendar quarter of a Fiscal Year means the excess, if any of (a) the product of (i) a quarter (¼) in the case of the first calendar quarter of the Fiscal Year, half (½) in the case of the second calendar quarter of the Fiscal Year, three-quarters (¾) in the case of the third calendar quarter of the Fiscal Year, and one (1) in the case of the fourth calendar quarter of the Fiscal Year and (ii) the Member’s Estimated Tax Amount for such Fiscal Year over (b) all Tax Advances previously made during such Fiscal Year to such Member.

“Redemption Breach” has the meaning set forth in Section 3.08(b).

“Redemption Date” means the date on which the Redemption Price is paid pursuant to a Redemption Request.

“Redemption Deadline” means the date one hundred and eighty (180) days following a redemption election.

“Redemption Exceptions” means any event in which the Company is not permitted to make payment of the Redemption Price to any Preferred Member because (a) such payment is prohibited by Section 18-607 of the Delaware Act or (b) the Company is, or by payment of the Redemption Price would be, Insolvent.

“Redemption Notice” has the meaning set forth in Section 3.07(a).

“Redemption Price” has the meaning set forth in Section 3.07(a).

“Registration Rights Agreement” means the registration rights agreement, dated as of the date of this Agreement, by and between the Company and the Preferred Members.

“Regulatory Allocations” has the meaning set forth in Section 6.02(e).

“Regulatory Requirement” has the meaning set forth in Section 13 of Annex A.

“Reorganized PrivateCo” means Capstone as of the consummation of the Plan.

“Reorganized PrivateCo Entities” means Reorganized PrivateCo and Reorganized PrivateCo’s Affiliates other than, for the avoidance of doubt, the Company, the Company Subsidiaries, Reorganized PublicCo and any other Subsidiaries of Reorganized PublicCo.

“Reorganized PrivateCo Services Agreement” means [●].

“Reorganized PublicCo” means Capstone Turbine International, Inc. as of the consummation of the Plan.

“Reorganized PublicCo Approved Sale” has the meaning set forth in Section 10.04.

“Reorganized PublicCo Services Agreement” means [●].

“Representative” means, with respect to any Person, any and all directors, managers, officers, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person.

“Restricted Entities” means the Company, its Subsidiaries and controlled Affiliates.

“Restricted Transaction” has the meaning set forth in Section 10.06(b).

“Revised Partnership Audit Rules” has the meaning set forth in Section 11.04(a).

“ROFO Exercise Period” has the meaning set forth in Section 10.06(c).

“ROFO Offer” has the meaning set forth in Section 10.06(b).

“ROFO Offeror” has the meaning set forth in Section 10.06(b).

“ROFR Notice Period” has the meaning set forth in Section 10.03(b)(i).

“ROFR Offer Notice” has the meaning set forth in Section 10.03(b)(i).

“ROFR Rightholders” has the meaning set forth in Section 10.03(a).

“Sale Notice” has the meaning set forth in Section 10.05(c).

“Sanctioned Person” has the meaning set forth in Section 1(b) of Annex A.

“Sanctioned Territory” has the meaning set forth in Section 1(b) of Annex A.

“Sanctions” means sanctions or trade embargoes enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, U.S. Department of State, or U.S.

Department of Commerce, or (b) the United Nations Security Council, the European Union (“EU”) or any EU member state, His Majesty’s Treasury of the United Kingdom.

“Secretary of State” has the meaning set forth in the Recitals.

“Section 13(r)” means Section 13(r) of the Exchange Act.

“Securities Act” means the Securities Act of 1933.

“Selling Member” has the meaning set forth in Section 10.05(a).

“SEF” means a swap execution facility as defined in CFTC Regulation 40.1(f).

“Shared Representative” has the meaning set forth in Section 14.01.

“Shortfall Amount” has the meaning set forth in Section 7.03(b).

“Specified Indemnified Persons” has the meaning set forth in Section 13.02(f).

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if a corporation, a majority of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control a managing member, manager or managing director (or a board comprised of any of the foregoing) or general partner of such limited liability company, partnership, association or other business entity.

“Tag-Along Member” has the meaning set forth in Section 10.05(a).

“Tag-Along Notice” has the meaning set forth in Section 10.05(d)(ii).

“Tag-Along Period” has the meaning set forth in Section 10.05(d)(ii).

“Tag-Along Portion” has the meaning set forth in Section 10.05(d)(i).

“Tag-Along Sale” has the meaning set forth in Section 10.05(a).

“Tax Advance” has the meaning set forth in Section 7.03(a).

“Tax Amount” of a Member for a Fiscal Year means the product of (a) the Tax Rate for such Fiscal Year and (b) the Adjusted Taxable Income of the Member for such Fiscal Year with respect to such Member’s Units.

“Tax Contest” has the meaning in Section 11.04(b).

“Tax Rate” of a Member, for any period, means the highest marginal blended federal, state, and local tax rate applicable to ordinary income, qualified dividend income, or capital gains, as appropriate, for such period for a corporation in New York, New York or Los Angeles, California, whichever is higher.

“Third-Party Purchaser” means any Person who is not the Company or a wholly owned Company Subsidiary.

“Transaction Support Agreement” means the transaction support agreement, dated September 27, 2023, by and among Reorganized PublicCo and Broad Street Credit Holdings LLC.

“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate, or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option, or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation, or similar disposition of, any Units owned by a Person or any interest (including a beneficial interest) in any Units or Unit Equivalents owned by a Person. “Transfer” when used as a noun shall have a correlative meaning. “Transferor” and “Transferee” mean a Person who makes or receives a Transfer, respectively.

“Treasury Regulations” means the final or temporary regulations issued by the United States Department of Treasury pursuant to its authority under the Code, and any successor regulations.

“Unallocated Item” has the meaning set forth in Section 6.05.

“Unit” means a unit representing a fractional part of the Membership Interests of the Members and shall include all types, classes, and series of Units, including the Preferred Units and the Common Units; provided, that any type, class, or series of Unit shall have the privileges, preference, duties, liabilities, obligations, and rights set forth in this Agreement with respect to such type, class, or series of Unit and the Membership Interests represented by such type, class, or series of Unit shall be determined in accordance with such privileges, preference, duties, liabilities, obligations, and rights.

“Unit Equivalents” means any security or obligation that is by its terms, directly or indirectly, convertible into, exchangeable, or exercisable for Units, including any option, warrant, or other right to subscribe for, purchase, or acquire Units.

“Unrestricted Entities” means Reorganized PublicCo, its Subsidiaries and controlled Affiliates, other than any of the Restricted Entities.

“Voting Members” has the meaning set forth in Section 4.07(b).

“Voting Units” has the meaning set forth in Section 4.07(a).

The Issuance Notice shall also be accompanied by a current copy of the Members Schedule indicating the Members’ holdings of Units in a manner that enables each Member to calculate such Member’s Pro Rata Portion of any New Securities.

Notwithstanding the foregoing, a Preferred Member may Transfer less than all of the Preferred Units held by such Preferred Member in one transaction or a series of related transactions to Affiliates of such Preferred Member.

No Transfer of Units or Unit Equivalents to a Person not already a Member of the Company shall be deemed completed until the prospective Transferee is admitted as a Member of the Company in accordance with Section 4.01(b).

provided, that such Covered Person’s conduct did not constitute fraud, gross negligence or willful misconduct, in each case as determined by a final, non-appealable order of a court of competent jurisdiction. In connection with the foregoing, the termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Covered Person’s conduct constituted fraud, gross negligence or willful misconduct.

If to a Member, to such Member’s respective mailing address or email address, as set forth on the Members Schedule.

[signature pageS follow]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

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ANNEX A

Member Representations Regarding Compliance with Anti-Corruption and Anti-Bribery Laws and Sanctions.

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ANNEX B

Exhibit A

FORM OF JOINDER AGREEMENT

[FORM OF JOINDER AGREEMENT]

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Schedule A

MEMBERS SCHEDULE

[DATE]

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Common Members

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Preferred Members

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MANAGERS SCHEDULE

[DATE]

[Manager Names]

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Exhibit I

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Trademark License Agreement

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IN WITNESS WHEREOF, the Parties have entered into this Agreement or have caused this Agreement to be executed as of the Effective Date by their respective officers thereunto duly authorized.

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[Reorganized PrivateCo.]

By:‌Name: Title:

CAPSTONE GREEN ENERGY LLC

By:‌Name: Title:

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